Illegal Ruling on Forced Discharge... Could It Open the Way for Transgender Military Service?

Court Rules Forced Discharge of Corporal Byeon Hee-soo Illegal... "Should Have Used Female Standards"
Israel, Iran, and About 24 Other Countries Allow Transgender Military Service

The Joint Countermeasures Committee for the Reinstatement and Restoration of Honor of Sergeant Byeon Hee-soo held a press conference on the morning of the 7th in front of the Daejeon District Court in Dunsan-dong, Seo-gu, Daejeon, welcoming the court's ruling.
[Image source=Yonhap News]

[Asia Economy Reporter Kim Soyoung] The court ruled that the forced discharge of the late Sergeant Byeon Hee-soo, who underwent gender reassignment surgery during military service, was illegal. The ruling implies that if Sergeant Byeon’s discharge is assessed based on female standards, it does not constitute a legitimate reason for discharge. A civic group that supported Sergeant Byeon’s decision to undergo gender reassignment held a press conference immediately after the ruling, calling it a meaningful decision for sexual minorities, albeit belated. The Ministry of National Defense is expected to begin policy research related to transgender military service within the year.

The Administrative Division 2 of Daejeon District Court (Presiding Judge Oh Young-pyo) ruled on the 7th in favor of Sergeant Byeon in the lawsuit he filed against the Army Chief of Staff during his lifetime, seeking cancellation of his discharge. The court stated, "If Sergeant Byeon’s condition after gender reassignment is evaluated based on female standards rather than male standards, it does not meet the criteria for mental or physical disability that justify discharge."

This is significant as it is the first precedent regarding discharge of transgender soldiers, a matter previously without case law. Lim Tae-hoon, director of the Military Human Rights Center, said, "It is very welcome as it shows that the court can fully serve as the last bastion of human rights."

On the morning of the ruling, the "Joint Countermeasure Committee for the Reinstatement and Honor Restoration of Sergeant Byeon Hee-soo (Joint Committee)" held a press conference in front of Daejeon District Court in Dunsan-dong, Seo-gu, Daejeon, welcoming the court’s decision. They stated, "Today’s ruling will be remembered in history as a beacon of hope reaching the weary hearts of sexual minorities." They added, "We welcome the fact that the court’s ruling can serve as the last bastion of human rights," but expressed regret that "Sergeant Byeon’s modest and ordinary dream only came true after his passing."

Sergeant Byeon, who belonged to an army unit in northern Gyeonggi Province, underwent gender reassignment surgery abroad during leave in November 2019 and returned. In December of the same year, he applied to Cheongju District Court to correct his gender marker. He wished to continue serving as a female soldier, but the military conducted a medical examination regarding his physical changes on January 23 of the following year and classified him as having a "Grade 3 mental and physical disability," deciding on forced discharge.

Late Corporal Byeon Hee-su. [Image source=Yonhap News]

Sergeant Byeon filed a personnel appeal with the Army Headquarters in February last year, requesting a re-examination, but it was rejected. Subsequently, in August last year, he filed an administrative lawsuit at Daejeon District Court, which has jurisdiction over Gyeryongdae, seeking cancellation of the forced discharge. He was found dead at his home in March.

In December last year, the National Human Rights Commission judged the Army’s forced discharge as a human rights violation and deemed it unjust, recommending the Army Chief of Staff cancel the discharge.

The Commission pointed out, "The Army arbitrarily interpreted gender reassignment surgery as a mental and physical disability without clear legal grounds and discharged the victim," and added, "There is no evidence that Sergeant Byeon’s health condition made him 'unfit for active duty'." It is also reported that the Commission recommended the Minister of National Defense to revise related systems to prevent recurrence of such harm.

In this regard, the Ministry of National Defense plans to start research on transgender military service within the year. According to the office of Kim Byung-joo, a member of the National Defense Committee of the National Assembly from the Democratic Party of Korea, the Ministry is considering entrusting the research to the Korea Institute for Defense Analyses (KIDA) or outsourcing it externally.

Earlier, in March, Minister of National Defense Seo Wook responded to a question at the National Defense Committee about whether research on transgender military service and support for gender reassignment surgery costs had been conducted, saying, "Not yet, but I think it should be done now." Under current laws such as the Military Service Act, Military Personnel Act, and related regulations including the physical examination rules annex 5 and Army regulations, the military has blocked transgender individuals from enlisting.

Although expectations for allowing transgender military service have increased following this ruling, further discussions including legislative amendments are necessary. The court stated, "In cases where a male soldier enlists and undergoes gender reassignment surgery during service to become female, whether the individual qualifies for discharge due to other mental or physical disabilities as a female, and whether the transitioned female is fit for active duty, should ultimately be decided at the national level through legislation and policy, comprehensively considering the military’s uniqueness, troop management, impacts on national defense and society, basic human rights of sexual minorities, and public opinion."

Currently, about 24 countries including Israel and Iran allow transgender military service. In Asia, Thailand is the only country that partially permits military service for those who have undergone hormone therapy and breast surgery for gender reassignment. The United States, under the Joe Biden administration, has allowed transgender military service. On January 25 (local time), President Joe Biden signed an executive order reinstating transgender military service, which had been restricted under former President Donald Trump.

Experts emphasize that this ruling should serve as a catalyst for deeper discussions on transgender military service in Korean society. Park Han-hee, a transgender lawyer affiliated with the public interest human rights lawyers’ group "Law Making Hope," said in an interview with YTN Radio’s "Lee Dong-hyung’s News Face-Off," "I believe this has become an opportunity to start discussions on how transgender individuals can serve proudly as themselves," but also added, "I hope there will be more discussions on how to evaluate transgender individuals who have not undergone surgery or how to assess gender based on resident registration numbers, and how the right to live according to gender identity can be guaranteed."

This content was produced with the assistance of AI translation services.